The

Janet Napolitano
Governor

OAH

Cliff J. Vanell
Director

Vol. 31
May 2004
www.azoah.com

Official Newsletter of the Arizona Office of Administrative Hearings

CERTIFICATION OF ADMINISTRATIVE LAW JUDGE DECISIONS
Cliff J. Vanell, Director
Director’s note: OAH is committed to fairness and making hearings
accessible to all. This article is part of a series of informational articles to
educate the public and parties who appear before us about the hearing
process and how to better present their cases. The following articles may be
found at OAH’s website at www.azoah.com along with all previous articles
published in the OAH Newsletter.

What is “Certified”
Cases scheduled with the Office of Administrative Hearings
(OAH) either proceed to hearing or are vacated on motion of one
or both of the parties. If a case proceeds to hearing, the Administrative Law Judge will issue a document entitled “Administrative
Law Judge Decision” within twenty days of the conclusion of the
hearing.1 The Administrative Law Judge Decision (ALJ Decision)
consists of findings of fact, conclusions of law and recommended
order2 and is written by the Administrative Law Judge to be selfoperative in adjudicating the matter in the event the ALJ Decision
is certified as the final administrative decision.3 The ALJ Decision
will be certified as the final administrative decision if the agency,
board or commission which transferred the case to the OAH
does not accept, reject or modify the ALJ Decision within certain
prescribed time periods of receipt of the ALJ Decision.4
The Meaning of Certification
Certification of the ALJ Decision as the final administrative
decision means that the OAH ‘accepts’ the decision as if the
agency, board or commission had. The effect is that certain
other time limits begin to run, including the time by which a party
may request a rehearing5 or appeal to superior court.6
Time Period – Agencies/ Boards or Commissions Meeting
More than Once a Month
The usual time period by which agencies, boards or commissions must act is within thirty days of personal service (actual
receipt) or within thirty-five days of mailing (thirty days plus 5
The Office of Administrative Hearings (OAH) began operations on January 1, 1996.
Administrative Hearings previously provided by regulatory agencies (except those
specifically exempted) are now transferred to the OAH for independent proceedings. Our statutory mandate is to “ensure that the public receives fair and independent administrative hearings.”
The process of unifying the administrative hearings function in OAH-style agencies

days which statutorily establishes receipt), whichever comes
first.7
As an example, if an ALJ Decision were personally served on a
representative of the agency on Day 1 and also mailed on Day
1, the agency would have to act by Day 31, even though, had
the decision only been mailed, the agency would have had until
Day 36. As will be explained later, the actual day of personal
service or mailing is not counted.
Time Period –Boards or Commissions Meeting Monthly or
Less Frequently
There is another rule for boards or commissions that meet
monthly or less frequently.8 The essential rule is that a board or
commission must act within five days of its next meeting after
receipt of the ALJ Decision IF the ALJ decison was received
more than 30 days before the meeting. If the ALJ Decision is
received less than 30 days before its next meeting, then the
board or commission has until five days after the following
meeting in which to act on the ALJ Decision.
For example, if an ALJ Decision was personally served on a
board or commission on Day 1 and also mailed on Day 1, and
the next meeting of the board or commission was held on Day
32, the board or commission would have to act within 5 days of
that meeting. However, had the decision only been mailed, it
would not have to act at that meeting because it was held
within 35 days of mailing (remembering that 5 days is added to
statutorily establish receipt). The board or commission would
be able to forego acting at its next meeting and address it at

“Certification”
(continued page 2)
began in 1945 with California. The current states or cities having adopted the
model, with year of inception are: Arizona (1996); California (1961); Colorado
(1976); Florida (1974); Georgia (1995); Chicago (1997); Iowa (1986); Kansas (1998);
Louisiana (1996); Maine (1992); Maryland (1990); Massachusetts (1974); Michigan
(1996); Minnesota (1976); Missouri (1965); New Jersey (1979); New York City (1979);
North Carolina (1986); North Dakota (1991); Oregon (1999); South Carolina (1994);
South Dakota (1994); Tennessee (1975); Texas (1991); Washington D.C. (1999);
Washington (1981); Wisconsin (1978); and Wyoming (1987).

Mission Statement:
We will contribute to the quality of life in the State of Arizona by fairly and impartially hearing
the contested matters of our fellow citizens arising out of state regulation.

3rd Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in
92.97% of all Administrative Law Judge Decisions acted upon
by the agencies.* ALJ Decisions, including orders, were
accepted without modification in 84.86% of all Administrative
Law Judge Decisions acted upon by the agencies. 68.96% of
all agency modification was of the order only (i.e. penalty
assessed).
Appeals to Superior Court:
There were 37 appeals filed in Superior Court.
Rehearings:
The rehearing rate was 1.00%, defined as rehearings scheduled
(7) over hearings concluded (697).**
Completion Rate:
The completion rate was 93.12%, defined as cases completed
(1786) over new cases filed (1918).
Continuance:
The average length of a first time continuance based on a
sample of cases (first hearing setting and first continuance both
occurred in the 3rd quarter) was 43.90 days. The frequency of
continuance, defined as the number of continuances granted
(199) over the total number of cases first scheduled (1895),
expressed as a percent, was 11.52%. The ratio of first settings
(1728) to continued settings on the calendar (202) was 1 to
0.12.
Dispositions:
Hearings conducted: 60.4%; vacated prior to hearing: 37.1%;
hearings withdrawn by the agency: 2.5%.
Contrary Recommendations and Agency Response: 17.81%
of Administrative Law Judge Decisions were contrary to the
original agency action where the agency took a position.
Agency acceptance of contrary Administrative Law Judge
Decisions was 82.19%.
5.24*% of Administrative Law Judge Decisions were certified as final by
the OAH due to agency inaction or were rendered moot by settlement.
** Cases which were vacated or which settled on the day of hearing are
not included.

“Certification”
(continued from page 1)
the following meeting. Thus, if the ALJ
decision is mailed on October 1 and the
next two board or commission meetings
are scheduled for October 15 and
November 15, the board or commission
need not consider the matter until
November 15. The board or commission
would have until November 20 to act on
the ALJ Decision.
Time Period – Boards or Commissions
Meeting Quarterly or Less Frequently
The essential rules are the same as for
boards or commissions meeting monthly
or less frequently.9 However, such boards
or commissions may continue the meeting
upon a finding of “good cause.”10
Time Period – The First Day
The countdown for action by an agency,
board or commission begins the day after
personal service or mailing.11 So, if an ALJ

Decision is sent on Day 1, the
thirtieth day for personal service is
Day 31. Likewise, the thirty-fifth
day for mailing is Day 36.
Time Period – The Last Day
If the due date for action by an
agency, board or commission is
on a Sunday or other holiday, the
Sunday or holiday is excluded
and the due date extended to the
next non-holiday.12 For example,
if the agency, board or commission action due date were on
Sunday, May 30, 2004 and the
next day is Memorial Day, the
agency action would be due the
next day, Tuesday, June 1, 2004.
OAH Methods of Tracking
Agency Due Dates
When an ALJ Decision is mailed,
a docket entry is created that
counts thirty-five days from the
entry of the docket event. In the
cases of boards or commissions
meeting monthly or less frequently, the next meeting date of
the board or commission is
established and five days are
added. That date is substituted
for the thirty-five day docket entry.
If the next meeting date, however,
is less than 30 days from receipt
of the ALJ Decision, the date of
the following meeting is established and 5 days are added. In
both cases, the due date is
adjusted if the day falls on a
Sunday or other holiday.

In the event of personal service,
the due dates created above will be
modified to reflect a sooner date if
personal service is completed within five
days of mailing. If personal service is later
than 5 days after mailing, the thirty-five
days after mailing will control as being the
sooner of the two dates.

send a copy of the original ALJ
Decision to all parties.13 The agency,
board or commission cannot remand a
matter. In the event of a rejection or
modification, the agency, board or
commission must send the original ALJ
Decision to all parties along with the
reasons for any modification or
rejection.
Beyond verifying receipt of an action by
the agency, board or commission, the
OAH has viewed its certification solely
as a ministerial act and has generally
declined to adjudicate the sufficiency of
the form except in extreme cases, as
for instance, where no reason is given
for modification or rejection. Insufficiency, however, has been raised on
appeal. At least one court has been
urged to substitute the ALJ Decision for
the action of the agency, board or
commission action on the basis that
the formal requirements of agency
action had not been met.14
Methods of Transmission to the
OAH
Agencies, boards or commissions can
use any method as long as the action
is actually received on the due date.
Fax transmissions are stamped the
date of the transmission, even if
received after business hours. E-mails
are stamped the date posted to the
Internet.
Receipt by the OAH
The action of the agency, board or
commission accepting, rejecting or
modifying the ALJ Decision must
actually be received by the OAH on the
due date.15 Therefore, an agency
action which is mailed on Day 28 after
personal service, but not received by
the OAH until Day 32 will not serve to
avoid certification of the ALJ Decision
by the OAH.

These due dates are tracked and, should
the due date for agency, board or commission action pass without the OAH’s receipt
of an acceptance, rejection or modification,
a certification document will be generated.

OAH Method of Tracking Receipt
When an agency, board or commission
action is received, a docket entry is
made dated the same date as the date
of receipt. If multiple submissions are
made, the earliest action tolls the
countdown to certification.

In the case of boards or commissions
meeting quarterly or less frequently, the
due date will be adjusted for any continuances granted for good cause.

Standard form of Certification
The following operative language is
used in the OAH’s certification document:

The Form of Agency, Board or Commission Acceptance, Rejection or Modification
When accepting an ALJ Decision, the
agency head, board or commission must

page 2

I [the Director] have reviewed the records
of the Office and as co-custodian of such
records have determined:
1. On [date] the Administrative Law
Judge Decision in the above entitled

Agency Response to Administrative Law Judge Decisions January 1, 2004 - March 31, 2004

Decision moot
0.13%

700
628

Administrative Law Judge
Decision certified as final upon
agency inaction
5.24%

Agency rejects the
Administrative Law Judge
Decision
3.20%

600

500

400
cases

Agency amends order only
7.67%

300
Agency accepts without
modification
80.31%

200

100

Agency amends findings of
facts/conclusions of law only
3.45%

60
27

25

Agency accepts without Agency amends findings Agency amends order
modification
of facts/conclusions of
only
law only

Agency rejects the
Administrative Law
Judge Decision

41
1

0
Administrative Law
Judge Decision moot

Administrative Law
Judge Decision certified
as final upon agency
inaction

Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, January 1 - March 31, 2004

matter was transmitted to the [name of agency, board, or commission] by
[personal service or mail.]

60.00
47.63

50.00

30.00
17.54

20.00

“Certification”
(continued page 4)

15.75

10.64 11.21

10.00
0.94

3. No action by [name of agency, board or commission] was received by
the Office of Administrative Hearings as of [date plus 30 for personal
service; date plus 35 for mailing; date of meeting of board or commission
plus 5 days].

51.81

40.00
Days

2. Pursuant to A.R.S. § 41 -1092.08, and A.R.S. § 1-243 the [name of
agency, board or commission] was required to accept, reject or modify
the Administrative Law Judge Decision, as evidenced by receipt of such
action by the Office of Administrative Hearings, on or before [date plus
30 for personal service; date plus 35 for mailing; date of meeting of
board or commission plus 5 days].

AAA
CC

2.20

0.00
Request for Hearing to
Scheduling

Scheduling to First
Hearing Date

Conclusion of Hearing to ALJ Decision to Agency
ALJ Decision
Action

*Note: Appealable Agency Actions are agency actions taken before an opportunity for a hearing. A
typical example would be the denial of a license. A party is entitled to a hearing before the OAH
before the action becomes final. Contested Cases involve actions yet to be determined by an agency.
An example would be proposed discipline on a professional license with the possibility of suspension or
revocation. Parties are entitled to a hearing before the OAH prior to the agency acting.

1918 Cases Filed January 1, 2004 - March 31, 2004
3rd Q

Accountancy
Acupuncture Board
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
Arizona Trial Courts
Arizona Retirement Sys
Attorney General
Arizona Works
Athletic Board
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges
Cosmetology

FY 2004

2
10
0
0
1
5
37
81
0
0
0
0
865 2149
0
0
3
7
0
0
4
4
0
7
0
0
0
0
9
51
0
3
15
61
0
3
1
3
0
0
0
0
1
7

3rd Q

3
Dental
1
Economic Security
Economic Security-CPS
61
Education
2
Environ. Quality
36
Fingerprinting
147
Funeral
0
Gaming
1
Health Services
104
Insurance
19
Land
2
Liquor
15
Lottery
0
Maricopa Cty. Housing
0
Medical Board
5
0
Medical Radiologic
0
Naturopathic
Nursing
26
Nursing Care Admin.
0
Occupation Therapy
0
Osteopathic
0
0
Parks

page 3

FY 2004

10
1
166
6
130
474
0
8
316
60
6
41
0
0
19
4
0
56
2
0
0
0

3rd Q FY 2004

3
6
Peace Ofc. Standards
3
19
Pest Control
0
2
Physical Therapy
0
Podiatry
0
0
Psychologist Examiners
0
2
Public Safety - CW
4
6
Public Safety - Trans
12
0
Public Safety - Adult CC
0
0
Pvt. Post. Ed.
26
4
Racing
6
0
Radiation Regulatory
0
459 1296
Registrar of Contr.
23
65
Real Estate
11
Revenue
44
0
1
School - Deaf & Blind
9
24
Secretary of State
2
Technical Registration
2
0
Veterinary Board
0
1
Water Qual. App. Bd.
2
5
41
Water Resources
84
Weights and Measures 30

Evaluations of OAH Services
Note: The four major groups of those who responded are: represented private party; unrepresented private party; counsel for a private party; and counsel for the agency. The evaluations
are filled out immediately after the hearing, and the evaluations are not disclosed to the ALJ
involved. The are used by management to improve the OAH process and do not affect the
decisions issued.

Unrepresented Responses 3rd Quarter

All Responses 3rd Quarter

300

600

250
Excellent

200

Good

150

Average

100

Poor

500

200

0

0

Poor

Q

ue
st
i
Q on
ue
1
st
io
Q
n
ue
2
st
io
n
Q
3
ue
st
io
Q
n
ue
4
st
io
Q
n
ue
5
st
io
n
Q
6
ue
st
io
Q
n
ue
7
st
io
Q
n
ue
8
st
io
n
9

100

ue
st
io
n
Q
1
ue
st
io
n
Q
2
ue
st
io
n
Q
3
ue
st
io
n
Q
4
ue
st
io
n
Q
5
ue
st
io
n
Q
6
ue
st
io
n
Q
7
ue
st
io
n
Q
8
ue
st
io
n
9

Good
Average

300

50

Q

Excellent

400

Questions:

5. Effectiveness in dealing with the issues of the case

1. Attentiveness of ALJ

6. Sufficient space

2. Effectiveness in explaining the hearing process

7. Freedom from distractions

3. ALJ’s use of clear and neutral language

8. Questions responded to promptly and completely

4. Impartiality

9. Treated courteously

“Certification”
(continued from page 3)
Therefore, pursuant to A.R.S. § 41 -1092.08(D), the attached Administrative Law Judge Decision is certified as the final administrative decision of
the [name of agency, board or commission].
You have the right to request a rehearing from the [agency, board or
commission] pursuant to A.R.S. § 41-1092.09(A). In addition, you have
the right to appeal your action to the Superior Court, pursuant to A.R.S. §
41-1092.08(H) although you may be required to seek a rehearing from
the [agency, board or commission] before you appeal (see A.R.S. § 411092.09(B)). Your further rights will be lost if you do not act in a timely
manner. You may wish to review these sections as quickly as possible
after receipt of this notice. They can be located at your local library or on
the internet at http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp.

Frequency of Certification
The following number of ALJ Decisions have been certified by the
OAH, reported by fiscal year:
FY 1999

73

FY 2000

53

FY 2001

28

FY 2002

34

FY 2003

84

FY 2004 (through April 2004)

72

The certification rate for ALJ Decisions in FY 2003 was 1.95%. As
of April 30, 2004, the certification rate for ALJ Decisions in FY 2004
is 2.7%.

Footnotes
A.R.S. § 41-1092.08(A)
A.R.S. § 41-1092(2)
3
A.R.S. § 41-1092(5)
4
The certification process became applicable to ALJ Decisions
transmitted after August 21, 1998.
5
A.R.S. § 41-1092.09(A)(1)
6
A.R.S. § 12-904(A)
7
A.R.S. § 41-1092.08(D) and (E)
8
A.R.S. § 41-1092.08(D)
9
A.R.S. § 41-1092.05(B)(1)
10
A.R.S. § 41-1092.05(B)(2)
11
A.R.S. § 1-243(A) provides that “…the time in which an act is
required to be done shall be computed by excluding the first day
and including the last day, unless the last day is a holiday, and
then it is also excluded.” A.R.S. § 1-301 enumerates specific State
holidays, which includes Sundays. See also OAH’s Substantive
Policy Statement found at http://www.azoah.com/
Substantive2.htm: ”Inapplicability of A.A.C. R2-19-107 in computing statutory time limits of A.R.S. § 41-1092 et seq.; Reference
Number PS - 2.0.”
12
See footnote 11, above.
13
A.R.S. § 41-1092.08(B)
14
Facilitec, Inc. v. Hibbs, 80 P.3d 765 (2003)
15
A.R.S. § 41-1092.08(D)
1
2

This publication is available in alternative formats. The OAH is an equal opportunity employer.